FAMILY COURT OF AUSTRALIA
| SALMON AND ORS & SALMON | [2020] FamCAFC 134 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PROPERTY – EXPERT EVIDENCE – Consideration of Part 15.5 of the Family Law Rules 2004 (Cth) – Where the primary judge refused permission under r 15.49 for expert evidence other than the single expert but extended the time periods for a conference (r 15.64B) and questions to the single expert (r 15.65) – Whether the applicants have established “a substantial body of opinion contrary to” the opinion of the single expert or “special reason” within the meaning of r 15.49(2) – Interpretation and application of the expert evidence rules. FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the orders from which leave to appeal is sought are a discretionary decision as to a matter of practice and procedure – Whether any discretionary error was made by the primary judge – Whether there is any basis for the grant of leave to appeal – Where the procedures for clarifying the single expert’s opinions had not been employed in advance of the application determined by the primary judge or the application for leave to appeal – Where on the proper interpretation of the applicable expert evidence rules there is no discretionary error demonstrated – Leave to appeal refused – applicants to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) ss 79, 97(3) Family Law Rules 2004 (Cth) Pt 15.5, rr 1.04, 1.06, 15.42, 15.49, 15.64B, 15.65 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67 Conias Hotels Pty Ltd v Murphy [2012] QSC 297 Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6 Daniels v Walker [2000] 1 WLR 1382 Demetriou v Demetriou [2019] FamCA 625 D v S [2009] QSC 446 Borriello v Borriello (1989) FLC 92-049; [1989] FamCA 48 Chick and Chick (1987) 12 Fam LR 64; [1987] FamCA 69 Lenehan and Lenehan (1987) FLC 91-814; [1987] FamCA 8 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Owners of Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWCA 325 Padnal & Padnal (No 3) [2014] FamCA 904 Salt & Salt [2018] FamCA 259 Simonsen & Simonsen [2009] FamCA 698 Walker Corporation Pty Ltd v Sydney Habour Foreshore Authority [2008] NSWLEC 282 |
| FIRST APPELLANT: | Mr Salmon |
| SECOND APPELLANT: | B Pty Ltd |
| THIRD APPELLANT: | Mr C Salmon and Ms D Salmon and Mr E Salmon as Trustees for the B Pty Ltd Superannuation Fund |
| RESPONDENT: | Ms Salmon by way of her Personal Legal Representatives Mr Simpson and Ms Simpson |
| FILE NUMBER: | BRC | 10433 | of | 2015 |
| APPEAL NUMBER: | NOA |
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- AGLC
- Salmon and Ors & Salmon [2020] FamCAFC 134
- Case
- [2020] FamCAFC 134
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appellants had demonstrated a substantial body of opinion contrary to the single expert's opinion or a special reason to present additional expert evidence. Furthermore, the court needed to determine whether there was any discretionary error by the primary judge in refusing permission to present additional expert evidence. The court also considered whether there was a basis for granting leave to appeal, given that the orders in question were discretionary decisions on matters of practice and procedure.
The court examined the procedures for clarifying the single expert’s opinions and found that these had not been employed prior to the primary judge’s decision or the application for leave to appeal. After interpreting the applicable expert evidence rules, the court concluded that there was no discretionary error demonstrated. The court found that the appellants had not established a substantial body of contrary opinion or a special reason as required by rule 15.49(2). Consequently, the application for leave to appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of and incidental to the application in an appeal.
The final orders of the court were that the first to third appellants’ application for leave to appeal the orders made by the primary judge on 24 October 2019, filed on 21 November 2019, be dismissed. Additionally, the first to third appellants were jointly and severally liable to pay the respondent’s costs of and incidental to the application in an appeal in the amount of $12,250 within one month.
Orders
Orders of the court
1.
The first to third appellants’ application for leave to appeal the orders made by the primary judge on 24 October 2019, filed 21 November 2019 be dismissed.
2.
The first to third appellants be jointly and severally liable to pay the respondent’s costs of and incidental to the application in an appeal in the amount of $12,250 within one (1) month.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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